Appeal from an order of the Civil Court of the City of New York, Queens County (Anne Katz, J.), dated March 15, 2010, deemed from a final judgment of the same court entered March 16, 2010 (see CPLR 5501 [c]). The final judgment, entered pursuant to the March 15, 2010 order denying tenant's motion for summary judgment dismissing the petition and granting landlord's cross motion for summary judgment, awarded landlord possession and the principal sum of $8,345.66 as against tenant in a nonpayment summary proceeding, and dismissed tenant's counterclaim.
Saunders St. Owners, Ltd. v Broudo
Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
PRESENT: PESCE, P.J., GOLIA and STEINHARDT, JJ
ORDERED that the final judgment is reversed, without costs, so much of the order dated March 15, 2010 as granted landlord's cross motion for summary judgment is vacated, landlord's cross motion for summary judgment is denied, tenant's counterclaim is reinstated, and the matter is remitted to the Civil Court for a trial on the disputed issues in accordance with the decision herein.
Landlord, a cooperative corporation, commenced this nonpayment summary proceeding to recover unpaid sublet fees. Tenant answered, asserting that he was not required to pay the sublet fees because he was entitled to the rights of a holder of unsold shares pursuant to a provision in the proprietary lease. Tenant also counterclaimed to recoup sublet fees that he had previously paid. It is undisputed that if tenant were found to have the rights of a holder of unsold shares, he would not be required to pay sublet fees.
After the parties submitted a set of stipulated facts, tenant moved for summary judgment dismissing the petition, and landlord cross-moved for summary judgment. In their motions, both parties relied upon the stipulated facts. The Civil Court denied tenant's motion and granted landlord's cross motion, finding that tenant had not demonstrated that he was entitled to the rights of a holder of unsold shares. A final judgment was subsequently entered, awarding landlord possession and the principal sum of $8,345.66 as against tenant and dismissing tenant's counterclaim.
"It is well established that a stipulation of facts pursuant to CPLR 3222 must cover all points in dispute so as to permit determination of the legal issue without resort to evidence dehors the stipulation, and that the existence of disputed facts will require dismissal of the submission. It is only when no issue of fact exists between the parties that they can bring their controversy to court pursuant to CPLR 3222. In this case, there are a number of issues which cannot be resolved by resort to the parties' stipulation" (Bhutta Realty Corp. v Sangetti, 165 AD2d 852, 853  [citation omitted]).
First, a nonpayment summary proceeding may be maintained only to collect unpaid rent (see RPAPL 711 ; 741 ; Matter of Bedford Gardens Co. v Silberstein, 269 AD2d 445 ). As neither the pleadings nor the stipulated facts establish that the sublet fees sought in this nonpayment proceeding are additional rent, landlord's cross motion for summary judgment should have been denied. In any event, on the question of tenant's entitlement to the rights of a holder of unsold shares, we find that, based upon the stipulated facts presented, neither party has established entitlement to summary judgment. Tenant claims that he is entitled to the rights of a holder of unsold shares pursuant to a clause in the proprietary lease that provides that if five specified conditions are met, and as long as neither the purchaser nor his family actually occupies the apartment, certain purchasers shall have all the rights of a holder of unsold shares, and director or shareholder approval will not be required for the transfer of shares. As the Civil Court found, the facts set forth in the stipulation do not show that the conditions specified in that provision had been satisfied or that any of the required documents called for in that provision exist. On the other hand, it appears, from statements in the stipulated facts, that the transfer of shares to tenant was, in fact, approved only by landlord's managing agent. Landlord has not explained under what circumstances, other than pursuant to the provision of the proprietary lease at issue here, one could purchase shares in the cooperative without the approval of the directors or shareholders. However, the stipulated facts do not definitively state that tenant's purchase of the shares was not subject to board approval. In addition, tenant has not explained why he paid the sublet fees for 10 years. Further, in the stipulated facts, neither party provided any statement as to their recollection of the transfer, or any other evidence of what their intentions or understandings were at the time (compare Likokas v 200 E. 36th St. Corp., 48 AD3d 245 ).
We further find that the record does not establish waiver and estoppel as a matter of law, because there is no conclusive evidence that landlord was aware that tenant claimed rights under the relevant provision, which is conditional and does not purport to apply in all situations. In addition, we note that the proprietary lease apparently contains a no-waiver clause (see Rotblut v 150 E. 77th St. Corp., 79 AD3d 532 ; LJ Kings, LLC v Woodstock Owners Corp., 46 AD3d 321, 322 ).
Because the stipulated facts do not establish, as a matter of law, whether the transfer was meant to confer upon tenant the rights of a holder of unsold shares, both tenant's motion and landlord's cross motion for summary judgment should have been denied. As we find that summary judgment should not have been granted on the question of whether tenant is required to pay sublet fees, we also reinstate tenant's counterclaim.
Tenant's remaining arguments are improperly raised for the first time on appeal and are, in any event, without merit.
Accordingly, the final judgment is reversed, so much of the order dated March 15, 2010 as granted landlord's cross motion for summary judgment is vacated, landlord's cross motion for summary judgment is denied, tenant's counterclaim is reinstated, and the matter ...